Collaborating on divorce

Special for The Ukiah Daily Journal Editor's note: Almost two years ago, the UDJ published an article by Kathy Brigham about a local group of professionals (lawyers, CPAs and mental health counselors) who were undergoing training in an alternative path to litigation - called the collaborative process - which is thought to be particularly useful in divorce proceedings. The following story describes one of the first local cases resolved through that process.

Doug Browe and Jan Hoyman are well known Ukiah potters. And their business, Hoyman-Browe Studio, has been a fixture on Main Street for many years. In 2011, after 30 years, their marriage was coming to an end and they faced the overwhelming task of disentangling all the legal and financial ties that bound them. Jan talked to an attorney, Scott Gaustad, who mentioned collaborative divorce early on.

"I didn't take it in at the time," says Jan. But Doug's lawyer, Tim Morrison, also brought up the idea of the collaborative process, as did Doug's counselor, Stephen Siler. Jan and Doug had stumbled upon two of the five founding attorney members of Collaborative Professionals of Mendocino and Lake Counties (CPML). And, in some sense, they became the "test case" for the process.

The ground rules for collaborative divorce are simple: everything is on the table and everyone is treated with respect. Rather than leading the charge, the lawyers are in the background, providing information and support. Additional professionals are included as needed. In this case, Jan chose to have a mental health professional, Christine Price, by her side. But, in the collaborative model, Christine saw her role as helping to clarify and respect the feelings of both parties.

"Christine was good at reading emotions, "notes Doug. "She could sense discomfort and would sometimes ask me to clarify a statement or to elaborate when I was holding back. She ensured that everyone was truly understood."

"I was grateful to have Christine by my side," says Jan. "But she would just as easily call me out for being combative and just as soon check in? with Doug as she would with me. At some point in the process, Doug offered to pay half her fees because he found her so valuable."

So what were the lawyers doing? They were not supposed to be arguing or advocating, but this does not come naturally to members of this profession.

"At first, I felt intimidated by Doug's lawyer and I didn't like some of the jabs back and forth between the lawyers," says Jan. "It took time to get used to the process." This is a sentiment with which the lawyers agree.

"It was a learning experience for Tim and me," recalls Scott Gaustad. "We were forced to recognize that we weren't advocating to win but, rather, we were working toward a common solution. Each time I went into a meeting I had to remind myself that I wasn't an advocate in the way I would be at a trial or settlement conference."

An interesting "ah-ha" moment came during one of the first meetings. "We were discussing in detail the options of legal separation versus dissolution and the various implications, such as tax consequences," explains Gaustad. "When Jan and Doug eventually concluded that the dissolution option was preferable, I was ready to move on to the next agenda item. But Christine stopped us and asked them both if they understood what had just happened - that they had just decided to dissolve their marriage - and whether they were okay with that. This is something that simply would not have occurred in the traditional settlement conference."

Aiding in eliminating the adversarial process is the unique structure of the collaborative process.

"Every meeting had a very specific agenda," explains Jan. "And the first order of business was to go over the minutes of the previous meeting. One lawyer would lead the meeting and the other lawyer would take minutes. At the next meeting, they switched places."

In the typical divorce/dissolution proceeding, the parties conduct discovery. They take depositions, at which the parties are asked hundreds of questions while their attorneys repeatedly interpose objections. The attorneys also send out written discovery, including pages and pages of questions and requests for documents. Failures (actual or perceived) to adequately respond to discovery result in motions to compel, coupled with motions for protective orders. Discovery disputes can even result in the appointment of a discovery referee, adding more expense to the parties.

In the collaborative process, both sides agree to provide all information they have - no objections, no exceptions. This information is utilized as the parties work through the issues to be settled. "It was completely open," says Doug. "There was no need to drag information out of anyone."

"There were nine meetings of about two hours each," explained Jan. "And I would check in with Scott and Christine before and after each meeting."

As a result, the process was not inexpensive, though a traditional contested divorce would have cost as much or more.

"And the bottom line is that, in a traditional dissolution, both sides lose," says Doug. "To elevate one party to winning status is to celebrate the other's failure. Neither side wins, but one person feels they've lost more."

"In a collaborative divorce, there is no winner or loser," explains Gaustad. "Everyone strives for the best possible solution for the family."

One of the other advantages of the collaborative process is privacy - your personal business is not laid out in a public courtroom. So why are Jan and Doug willing to talk about the process for a newspaper article?

Jan feels that the process allowed her to work through the difficulties of dissolving a 30 year marriage with a minimum of pain and with her individual interests respected and protected. And for that reason she thinks it is very important that others are made aware of this alternative to the traditional divorce process.

Doug agrees on the obvious advantages of the process and would recommend it to anyone who is unable to do it on their own.

And though their children are adults and not involved in the proceeding, it sounds as if they would recommend it as well. "Our daughters, now 20 and 24, were worried about a divorce battle," says Jan. "Neither of them wanted to hear any details as we were going through the collaborative process. But when it was complete, I gave them copies of the agreement and explained the process. They didn't ask any questions, but I felt that they appreciated knowing that this was worked out without any yelling or drama."

Attorney Morrison concludes: "The collaborative process is obviously neither inexpensive nor a quick fix. But compared to litigation and its cost - emotional damage, and lack of long term solutions - collaboration is a welcome alternative."